This order and judgment is not binding precedent, except under the *

doctrines of law of the case, res judicata, and collateral estoppel. This court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

F I LED

United States Court of Appeals

Tenth Circuit

March 30, 2007

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellant,

v.

JORGE MADROZA-ACOSTA and

PEDRO DELGADO,

Defendants - Appellees.

No. 06-2111

(D.C. No. CR-05-2602-MCA)

(D.N.M.)

ORDER AND JUDGMENT

*

Before LUCERO, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and

HARTZ, Circuit Judge.

The government appeals a district court order granting Jorge MadrozaAcosta and Pedro Delgado-Fundora’s joint motion to suppress evidence. Police

Officer Sean Healy, a New Mexico state patrolman, initiated a stop of a vehicle

occupied by the two men based on information provided to a police dispatcher by

an identified informant, Gary Burns. We conclude that it was not clearly
2

erroneous for the district court to find that Burns did not provide adequate and

specific information to the dispatcher about why he suspected the van was

engaged in illegal activity. Based on the limited information the district court

found Burns’ provided to the dispatcher, we conclude that Healy did not have

reasonable suspicion to stop the van. Exercising jurisdiction pursuant to 18

U.S.C. § 3731, we AFFIRM. 

I

On November 1, 2005, Gary Burns was traveling west on Interstate 40 (“I40”), en route to his home in Phoenix, Arizona. He stopped at a convenience

store near mile marker 267, where he noticed what he described as an unusual

vehicle, a “white, one-ton van with blacked-out windows.” When he entered the

store, Burns observed numerous “Hispanic-looking” individuals that “appeared to

be a concentrated group.” After he left the store and returned to his car, he

watched those individuals – Burns counted approximately 18 or 19 people – enter

the suspicious-looking van. Initially, Burns wrote down the van’s license plate

number and a brief description of the vehicle’s characteristics. After further

reflection, he attempted to contact the Border Patrol due to his suspicions that the

individuals he saw enter the van were undocumented aliens. 

Burns was unable to reach that agency, but was able to successfully contact

the New Mexico State Police. Police dispatcher Annissa Ray, a trainee, spoke

directly with Burns. A recording of that conversation – which is incomplete due
3

to faulty police recording equipment – reveals that Burns identified himself as

“Gary,” wanted to report “a lot of illegals [sic] traveling down the highway,” told

Ray his location, noted that 18 or 19 people were in an overloaded van, and

informed Ray that he “had the tag number and everything.” Because Ray was a

trainee she was not able to input this information into the police computer system. 

Ray relayed the information Burns supplied to Carmen Leyba, her supervisor,

who prepared a “computer aided dispatch” (“CAD”) regarding the incident. The

CAD report shows that a call was received from a Gary Burns on November 1,

2005 at 12:46 p.m. It identifies his contact number, the activity being reported as

“UAD” (or “undocumented aliens”), notes the activity was observed on I-40 near

mile marker 267, and indicates that the suspect vehicle, described as a white

Chevrolet van with California license plate number 5NVBY479, was last seen

traveling west on I-40. 

Based upon Burns’ tip, Leyba contacted New Mexico State Police Officer

Sean Healy, who was stationed in Edgewood, New Mexico. Leyba told Healy

that a tipster had observed an unusual number of people enter a white van with

California license plates near mile marker 267, and that the van was heading west

on I-40. Healy began heading east on I-40 in an effort to intercept the vehicle. 

While en route, he received additional information that the van had dark-tinted

windows, displayed California license plate number 5NVBY479, and was

registered to an individual named Juan Perez. 
4

On I-40, near Moriarty, New Mexico, Healy spotted a white van with darktinted windows heading west. After turning around, Healy began following the

van, but did not engage his emergency lights. Healy testified that the driver

looked back at him twice, but noted that this did not qualify as unusual. The van

was not speeding or being driven erratically. After Healy trailed the van for

approximately four miles, the van properly signaled and exited the highway. 

Healy followed. When the van entered a truck stop, Healy signaled for the van to

stop.

Healy approached the driver, and requested identification from both the

driver and front-seat passenger. Because of the nature of the suspected criminal

activity, Healy requested back-up assistance. After another police vehicle

arrived, Healy asked for documentation from the van’s other passengers. None

were able to comply. Healy then asked the driver and front-seat passenger about

their travel plans. Both stated that they were traveling from Houston, Texas to

Los Angeles, California. Although it is unclear exactly when, Healy instructed

dispatch to contact the Border Patrol, and shortly thereafter two agents arrived. 

When those agents confirmed that the van’s passengers were undocumented

aliens, the agents arrested the entire group. 

Both the driver and the front-seat passenger, defendants Madroza-Acosta

and Delgado-Fundora, were charged with one count of conspiracy to transport

illegal aliens in violation of 8 U.S.C. § 1324(a)(1)(A)(v)(I), and four counts of
5

transporting or aiding and abetting the transport of illegal aliens in violation of 8

U.S.C. §§ 1324(a)(1)(A)(ii), 1324(a)(1)(B)(I), and 1324(a)(1)(A)(v)(II). On

January 11, 2006 Madroza-Acosta filed a motion to suppress all evidence relating

to the seizure and subsequent search of the van. He argued that Healy lacked

probable cause or reasonable suspicion to initiate the traffic stop under Terry v.

Ohio, 392 U.S. 1 (1968). Delgado-Fundora joined that motion. On March 10,

2006 the district court granted defendants’ joint motion. The government now

appeals. 

II

“In reviewing an order granting a motion to suppress, we accept the district

court’s factual findings unless clearly erroneous . . . and view the evidence in the

light most favorable to the prevailing party.” United States v. Holt, 264 F.3d

1215, 1228 (10th Cir. 2001) (en banc). We review the ultimate question of

whether the officer had reasonable suspicion to stop the vehicle de novo. Ornelas

v. United States, 517 U.S. 690, 699 (1996). 

Reasonable suspicion does “not rise to the level required for probable

cause, and it falls considerably short of satisfying a preponderance of the

evidence standard.” United States v. Arvizu, 534 U.S 266, 274 (2002). Rather,

“reasonable suspicion represents a minimum level of objective justification.” 

United States v. Mendez, 118 F.3d 1426, 1431 (10th Cir. 1997) (quotation

omitted). Whether an officer has reasonable suspicion to initiate a stop is “not
 The government argued below that Healy had reasonable suspicion to stop 1

the van and detain its occupants because of his independent knowledge and

experience. It cited the following factors independent of Burns’ information

purportedly in support of Healy’s stop of the vehicle: (1) Healy is aware that I-40

is a major smuggling thoroughfare for illegal aliens; (2) The driver of the van

glanced at Healy in the side view mirror; (3) The van had blacked-out windows;

(4) The van exited the freeway once Healy began following it; and (5) Healy

(continued...)

6

readily, or even usefully, reduced to a neat set of legal rules.” United States v.

Sokolow, 490 U.S. 1, 7 (1989) (quotation omitted), and is a determination that

requires us to apply a “common sense” approach, United States v. Williams, 271

F.3d 1262, 1268 (10th Cir. 2001). Its existence “is dependent upon both the

content of information possessed by police and its degree of reliability. Both

factors – quantity and quality – are considered in the ‘totality of the

circumstances – the whole picture.’” Alabama v. White, 496 U.S. 325, 330

(1990) (quoting United States v. Cortez, 449 U.S. 411, 417 (1981)). The central

question is whether “[b]ased upon that whole picture the detaining officers must

have a particularized and objective basis for suspecting the particular person

stopped of criminal activity.” United States v. Cortez, 449 U.S. 411, 417-18

(1981). 

The government does not argue that the border patrol agents had probable

cause to arrest the defendants absent the information obtained by Healy.

Moreover, the government concedes that the only basis for Healy’s stop of the

vehicle is the information Burns provided to the dispatcher. Thus, based on the 1
(...continued) 1

knows that California is a source and destination point for illegal aliens. 

Although this line of argument has been abandoned on appeal, we feel

compelled to briefly address the government’s apparent belief that the defendants’

destination of California, a “source and destination point for illegal aliens,” is a

factor we should consider in determining whether Healy had reasonable suspicion

to search the van. This court has previously noted the exceptionally weak value

of this type of evidence in assessing whether reasonable suspicion existed to

justify a search for drugs. Williams, 271 F.3d at 1270 (holding that, standing

alone, information that “a vehicle hails from a purported known drug source area

is, at best, a weak factor in finding suspicion of criminal activity”). This is

particularly true because so many geographical locations have been found to fall

within the category of “known drug source.” See United States v. Beck, 140 F.3d

1129, 1138 & n.3 (8th Cir. 1998) (noting that the following locales have been

characterized as “known drug sources” by law enforcement officials: 

Albuquerque, New Mexico; Chicago, Illinois; Dallas, Texas; Detroit, Michigan;

El Paso, Texas; Fort Lauderdale, Florida; Houston, Texas; Los Angeles,

California; Long Beach, California; Miami, Florida; New York, New York;

Newark, New Jersey; Ontario, California; Oakland, California; Phoenix, Arizona;

Portland, Oregon; San Diego, California; San Francisco, California; Arizona;

California; Colorado; Florida; New Jersey; Texas; Washington; and the “entire

west coast”). Since that decision, law enforcement agents have added a number

of geographical locations to that already expansive list. See, e.g., United States v.

Hornbecker, 316 F.3d 40, 41 (1st Cir. 2003) (Southern California); United States

v. Aleman-Fuguereo, 117 Fed. App’x 208, 209 (3d Cir. 2004) (Aruba, Curacao

and St. Maarten); United States v. Ibarra-Sanchez, 199 F.3d 753, 759 (5th Cir.

1999) (Mexico); United States v. $30,000 in U.S. Currency, 30 Fed. App’x 473,

482 n.5 (6th Cir. 2002) (Columbus, Ohio); United States v. Pitts, 322 F.3d 449,

451-52 (7th Cir. 2003) (Northern California); United States v. Kaguras, 183 Fed.

App’x 783, 784-85, 790 (10th Cir. 2006) (Seattle, Washington; British Columbia,

Canada); United States v. DeGasso, 369 F.3d 1139, 1142 n.2 (10th Cir. 2004)

(Chihuahua, Mexico); Hurn v. United States, 221 F. Supp. 2d 493, 503 (D.N.J.

2002) (Jamaica); United States v. Hongla-Yamche, 55 F. Supp. 2d 74, 75 (D.

Mass. 1999) (Cameroon; West Africa). 

To the extent that law enforcement officials seem primed to begin

identifying “known illegal alien communities” this type of evidence appears to be

of minimal, if any, evidentiary value. 

7

Supreme Court’s decision in White, our inquiry in this case is two-fold: (1) What
8

reliable information did Burns provide to the dispatcher? and (2) Was that

information sufficient to provide Healy with reasonable suspicion to stop the van?

A

As noted above, we review the district court’s factual findings as to what

information was provided under the “clearly erroneous” standard. Holt, 264 F.3d

at 1228. “[A] finding is ‘clearly erroneous’ when although there is evidence to

support it, the reviewing court on the entire evidence is left with the definite and

firm conviction that a mistake has been committed.” Anderson v. City of

Bessemer, 470 U.S. 564, 573 (1985). “If the district court’s account of the

evidence is plausible in light of the record viewed in its entirety, the court of

appeals may not reverse it even though convinced that had it been sitting as the

trier of fact, it would have weighed the evidence differently.” Id. at 573-74. 

 In assessing the information possessed by a law-enforcement officer at the

time of a stop, we apply the “fellow officer” rule. This requires us to look not to

what the officer herself knew, but to “the collective knowledge of all the officers

involved.” United States v. Hinojos, 107 F.3d 765, 768 (10th Cir. 1997). This

includes any information that was conveyed by an informant to a police

dispatcher. Id.; White, 496 U.S. at 328-30 (1990); United States v. Elkins, 70

F.3d 81, 83 (10th Cir. 1995) (“Tips, even if anonymous, coupled with independent

police work, provide reasonable suspicion to warrant an investigative stop.”). 

 Burns spoke only to dispatcher Ray, and thus we must determine what
 Specifically, Burns alleged that he was suspicious of the van and its 2

occupants because: (1) Two of the individuals in the group appeared to be

guarding the others; (2) One of those men was wearing a “booney” hat and

appeared to have a small object – possibly a knife – attached to his belt; (3) When

the group entered the van, they opened the van door only wide enough that a

single person could enter, preventing onlookers from peering inside the van; and

(4) As he was leaving the store, he glanced at a newspaper article stating that if

an undocumented alien made it past the U.S.-Mexico border the chance that the

alien would be apprehended was akin to the chance of being struck by lightning. 

9

information he conveyed to Ray. Our task on appeal is made more complicated

because the district court did not make a specific numbered finding on this point. 

Reading the opinion as a whole, however, the district court found that only

limited information was forwarded by Burns to dispatcher Ray: the van’s “color,

license [plate] number, [a description that it had] blacked-out windows, [and its]

location, direction of travel, and number of occupants.” 

Although Burns testified that he provided additional information to

dispatcher Ray about why he suspected the van’s occupants were undocumented,2

the district court rejected this testimony, stating “I find that Mr. Burns did not

convey enough specific information about the reasons why he believed the van

and its occupants were suspicious.” Importantly, the government does not

challenge the district court’s finding that Burns did not provide information about

his suspicions. Based on our independent review of the record as a whole,

viewing the facts in favor of the defendants as we are required to do, see Holt,

264 F.3d at 1228, we cannot say that we have a “definite and firm conviction”
 To the extent the district court believed it was critical that the person that 3

actually spoke to Burns testify at trial, we note that under the fellow officer rule it

is immaterial whether the person that spoke to the informant testify. Instead, the

inquiry is merely whether the informant actually provided the information to a

police officer or dispatcher. Hinojos, 107 F.3d at 768. We also note that the

fellow officer rule does not stand for the principle that an officer has all the

information known to both the citizen-informant and the officers involved in the

investigation, as the government suggests. Only the information the citizen

provided to law enforcement personnel may form the basis for reasonable

suspicion. See Hinojos, 107 F.3d at 768. 

 Defendants argue that none of the information Burns provided was 4

reliable. In determining the reliability of information supplied by an informant,

we consider the credibility or veracity of the informant, the basis of the

informant’s knowledge, and the extent to which the police are able to

independently verify the reliability of the tip. White, 496 U.S. at 328-32; Adams

v. Williams, 407 U.S. 143, 147-48 (1972). Information that is given by an

identified informant with first-hand knowledge is entitled to greater weight. See

United States v. Johnson, 364 F.3d 1185, 1190-91 (10th Cir. 2004); United States

v. Jenkins, 313 F.3d 549, 554 (10th Cir. 2002). The district court found that the

(continued...)

10

that the district court’s finding on this point was erroneous. See Anderson, 470

U.S. at 573. Neither the CAD report nor the recording of Burns’ conversation

with dispatcher Ray indicates that Burns provided information about why he

suspected the van’s occupants were undocumented aliens. Moreover, neither

Leyba nor Healy provided clear testimony on this point. The only testimony

indicating that Burns provided his reasoning is Burns’ own, which the district

court found not to be supported by the record. 

3

Accordingly, under the very narrow standard with which we review the

district court’s factual findings, we affirm the district court’s finding that Burns

provided but the following limited, reliable information to dispatcher Ray: the 4
(...continued) 4

limited information Burns did provide to dispatcher Ray was reliable. The record

shows that Burns supplied dispatcher Ray with his full name and contact

information, personally observed the situation that he described, and conveyed

sufficient specificity regarding the van that there was a very low probability that

the officers would have stopped the wrong vehicle. Thus, we cannot say the

district court’s finding was clearly erroneous. 

 Because we conclude that the district court did not abuse its discretion in 5

finding that Burns did not inform the dispatcher why he suspected the van was

carrying undocumented aliens, we do not reach the question of whether Healy had

(continued...)

11

van’s “color, license [plate] number, [a description that it had] blacked-out

windows, [and its] location, direction of travel, and number of occupants.” 

B

We turn now to whether Healy had reasonable suspicion to stop the van

based on the limited information, described in the previous paragraph, Burns

supplied to dispatcher Ray. The district court ruled that this limited information

was insufficient to establish reasonable suspicion. Burns stated that a large

number of Hispanic individuals were traveling west on I-40 in a van with darktinted windows, and informed the dispatcher that he suspected they were

undocumented, but never told the dispatcher why he believed they were

undocumented. Burns apparently formed his suspicions based on his additional

observations discussed above, and indeed these suspicions may give rise to an

officer’s reasonable suspicion in support of a stop, but the district court found

that this information was not communicated to dispatcher Ray. Based on the 5
(...continued) 5

reasonable suspicion to stop the van had this information been provided. That

said, under similar circumstances, when the informant conveyed the reasons for

her suspicions, we have held that reasonable suspicion existed to stop a vehicle. 

See United States v. Leos-Quijada, 107 F.3d 786, 788-89, 794 (10th Cir. 1997)

(holding that officer had reasonable suspicion to stop a vehicle when confidential

informant personally observed the vehicle, provided a description of the vehicle

and its direction, detailed the basis for her suspicion that the vehicle was engaged

in illegal activity, and had previously given reliable information that led to the

successful apprehension of individuals engaged in various criminal activity). 

12

limited information that was provided to the dispatcher, we conclude that this

does not present a legal basis to stop the van. At best, at the time Healy stopped

the van he had “inchoate suspicions and unparticularized hunches” about whether

the occupants of the van were engaged in illegal activity. See United States v.

Salzano, 158 F.3d 1107, 1111 (10th Cir. 1998) (noting that “inchoate suspicions

and unparticularized hunches . . . do not provide reasonable suspicion.”) (citing

United States v. Wood, 106 F.3d 942, 946 (10th Cir. 1997)). Thus, Healy’s stop

of the van under these circumstances offended the Fourth Amendment.

III

Accordingly, we AFFIRM. Judge McWilliams dissents. 

Entered for the Court

Carlos F. Lucero

Circuit Judge